Right-of-way decision for resort mostly upheld

November 29, 2011

TUPPER LAKE - A Franklin County judge has upheld most of a 2010 decision from a jury of Tupper Lake residents that awarded Adirondack Club and Resort developers with a right of way on Nature Conservancy land.

Judge Robert Main Jr. issued his decision Monday, about 10 months after he heard arguments from ACR attorney Bob Sweeney and Nature Conservancy attorney Edward Fitzgerald.

Main ruled that there was enough proof for the 12-person jury to award the right of way across the Conservancy's Follensby tract because it is necessary to reach a 1,282-acre plot of land, known as the Moody Pond parcel, which developers plan to sell as their largest "great camp lot." The jury awarded the Conservancy $10,000 in damages, which Executive Director Michael Carr called a pittance at the time.

Main ruled that the jury couldn't, however, award developers the right to install a buried power line across the right of way. The language of the statute has to be strictly construed, he said, and there's no mention of utility lines in the law.

Developers filed to take the right of way in March 2010, citing an obscure state Highway Law. It triggered an unusual, three-day, court-style proceeding last September that allowed for attorneys to make arguments to a jury of only town residents with no judge presiding over the hearing.

The proceeding is so obscure, in fact, that Main wrote he's only encountered it once before - in 1998, also in Tupper Lake.

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The Adirondack Club and Resort is a proposed project that would overhaul the Big Tupper Ski Area in Tupper Lake and build out the land around it with about 700 luxury housing units and various amenities including an inn, a marina and an equestrian center. The project is under review with the state Adirondack Park Agency and, as part of that review process, was studied in a 19-day adjudicatory hearing this spring.

Parties submitted closing briefs in September and response briefs were submitted in October.

The APA board is in the process of a three-month review of the project, and it expects to make a decision in January.

"The statute and related case law provide very little guidance for the Court," Main wrote.

In October 2010, The Nature Conservancy filed a motion to vacate the jury's judgment on a number of grounds, including that ACR attorneys didn't adequately prove that the right of way is necessary, that the lack of a judge lead to irregularities that should overturn the decision, and that the case should be decided by real property law, not highway law.

In his written decision, Main made it clear that he reviewed the case thoroughly, saying he "scoured every page of the transcript of the proceedings before the jury."

He noted that jury trials in proceedings other than this are always presided over by a judge, who can issue rulings on things like evidence and procedure.

"This Court is certain that presenting this matter to a jury, without the presence of a judge, was novel, difficult and frustrating to counsel for both parties," Main wrote. "The transcript reveals that counsel did a commendable job of controlling themselves, and their witnesses, in front of the jury. That being said, neither was perfect."

Nature Conservancy spokeswoman Connie Prickett told the Enterprise in an email that the Conservancy plans to review the verdict with its attorneys and will weigh its options and "move forward based on the best interests of our organization."

"Our initial reaction is that we are pleased that the Judge saw fit to strike the jury's award of utility rights from the right-of-way easement, as these rights are not within the scope of the Highway Law," Prickett wrote. "We, of course, would have liked him to reverse the entire decision."